申请保全错误损害赔偿责任:规范、定性及诉讼实现

Liability for Damages due to Wrongful Application for Preservation:Norm,Nature and Legal Realization

民事诉讼法第108条是由完全法条构成的规范申请保全错误损害赔偿的独立实体法依据。学理及司法解释对“申请(保全)有错误”的理解或界定均是对民事诉讼法第108条的误读。审判实务中将申请保全错误损害赔偿责任定性为侵权责任,并将债权人是否有过错作为主观要件,不仅存在方法论及认识论上的错误,客观上也阻碍了债务人损害赔偿请求权的实现。申请保全错误损害赔偿责任为债权人基于非终局地确定债权人与债务人实体法律关系的保全裁定之执行而自担风险的风险责任。“申请有错误”之要义为法院依申请作出的保全裁定因欠缺保全的实体要件而自始不当。被保全的权利存在与保全具有必要性同为保全要件,欠缺其一则保全不当。应由申请保全错误损害赔偿诉讼法院依客观法律状况独立地审查保全是否不当,而不受保全诉讼裁判的拘束,但受本案诉讼法院就被保全的权利是否存在之裁判的拘束。应立足于平衡保护两造的立场,引入保险制度分散申请保全错误责任人之损害赔偿风险,完善诉讼保全责任保险与申请保全错误损害赔偿制度的对接。

Article 108 of the Civil Procedure Law is an independent substantive law consisting of a complete rule regulating damages for wrongful preservation.The judicial interpretation on and the definitions of"wrongful application(for preservation)"by scholars are all incorrect.In judicial practice,damages for wrongful preservation are characterized as tort liability with fault as its subjective constituent element,which is not only a methodological and epistemological error,but also an obstacle to the realization of the debtor's right to claim damages for wrongful preservation.The liability for damages for wrongful application for preservation is the creditor's risk liability based on the enforcement of a preservation decision that does not definitively determine the substantive legal relationship between the creditor and the debtor.Wrongful preservation means that the court's decision on the application for preservation was improper ab initio because of the lack of substantive elements of preservation.Both the existence of right to be preserved and the necessity of preservation are the substantive elements of preservation,without either of which the preservation ruling would be improper.The impropriety of a preservation ruling should be independently examined and judged by the court hears the action for damages in the light of the objective legal situation and should not be bound by the decision of the preservation court.The judgment on the preserved rights made by the court hears the case has res judicata and binds the court hears the action for damages.Based on the position of balanced protection of both parties,the insurance system should be introduced to decentralize the risk of damages of the person responsible for the wrongful application and the liability insurance of preservation should be dovetailed with damages of wrongful application for preservation.